by Thambu Kanagasabai, LLM [Lond.], FCII, September 25, 2016
Sri Lanka ranks second in the list of countries after Iraq to record the largest number of disappearances with unofficial estimated numbers of about 90,000 since the 1980s. Out of these disappearances, enforced or involuntary disappearances are reported to be around 65,000.
Enforced Disappearances always involve state officials and/or security forces. They happen when a person is illegally arrested and detained in undisclosed centres where torture and other ill-treatment including killing and disposal of the dead takes place. The arrest and detention is carried out violating all rules and procedures including court process.
The UN Working Group on Enforced or Involuntary Disappearances, [WGEID c/oOHCHR] in its report on July 08, 2016 after staying in Sri Lanka from 09 – 18 November 2015, has plainly made the following damning statement “Enforced disappearances have been used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter-terrorist activities or in the internal conflicts,” and many enforced disappearances could be considered as war crimes or crimes against humanity if addressed in a court of law” The UN working Group received 12,000 cases of enforced disappearance related to Jathika Vimukkti Perumuna [JVP] uprisings and during the armed conflict between Liberation Tigers of Tamil Eelam [LTTE} and government forces from 1980 to 2010.
Missing Person includes those who are arrested, or surrendered or summoned for inquiry and detained by the security forces during the war. These persons finally suffer disappearances mostly by killing and are generally untraceable. About 19,000 persons were reported to Paranagama Commision as confirmed missing.
Due to international and United Nations concerns in this serious human rights violation, this Bill was passed in haste ignoring the protests and concerns of affected parties who demanded prior consultation and their input as called for in the UNHRC Resolution in October 2015. The final outcome will be ‘haste makes waste’ and one could obviously realise the ineffectiveness and toothless powers of OMP to mete out justice to those victims, whose involvement was avoided. This Act has also excluded the participation of international experts and this glaring omission has prompted the UN Working group [WGEID] asking Sri Lanka to “allow them to take part in any Judicial Accountability Mechanism for human rights abuses including disappearances. Furthermore as long as the Prevention of Terrorism Act [PTA} 1979 remains in force, the OMP will have to work avoiding conflicting positions over persons detained under the PTA confining to the limits of its powers over them.
The OMP for its intent and purpose is a positive step to trace, search, and collect information as to the circumstances which led to disappearances, but it is just an inquisitional mission without any powers on its own to prosecute those involved in the disappearances after identifying them.
Furthermore, there is a lurking danger of its process to be torpedoed or stymied from the hardcore elements in the south raising crisis of “betrayal of the armed forces” and leading up in complete impunity for the perpetrators which is the hallmark of the judicial mechanism in Sri Lanka for the last 60 years of history.
It is to be noted, only a handful have been convicted for crimes committed during the past pogroms and massacres of civilians since 1956. [Mostly state organized pogroms in 1956, 1958, 1971, 1977, 1983 and from 2004 – 2009]
Sri Lankan Government as an undertaking in the UNHRC resolution of October 01, 2015 introduced the Office of the Mission Persons Act No. 14 of 2016 which was passed in Parliament and is now in the statute books with effect from 26th August 2016. The main objectives of the Office of the Missing Persons [OMP] are
“To take all necessary measures to search and trace missing persons including those
missing as victims of abduction, persons missing in action or in connection with armed
conflicts, political unrest and civil disturbances including conflicts of North-East, to know
the circumstances in which persons went missing and the fate and whereabouts of such
missing persons. To clarify the circumstances in which such persons went missing and
their fate. To identify proper avenues of redress to which such missing persons or their
relatives may have recourse.”
The OMP shall be a body corporate having perpetual succession and may sue and be sued in its corporate name. This section confers permanent status to OMP which can also be sued in its capacity as a corporation and for liabilities as incurred by a corporation. However no action is possible against any member of OMP for any acts or acts omitted while discharging his/her function as a member. This is specifically mentioned under Sec 2J  except by way of writ filed in Supreme court. The right to sue OMP for any of its findings is denied under Section [13-
Composition:- It will consist of seven members including a Chairman appointed by the President on the recommendation of the Constitutional Council.
Full Discretion to OMP is given to do all such other necessary things that may become necessary to achieve the objectives under the Act. This confers full freedom to OMP to decide which is necessary and it even need not act on this matter if it decides so. The mandate of the OMP shall extended to missing persons notwithstanding the period in which such person became a missing person. This provision could cover up periods from 1980s to current period.
Investigative powers of the OMP:- are to receive from any relative of a missing person or any other person or organization complaints relating to missing persons. Under this section anyone can make a complaint without any condition including groups and organizations.
The provision of selecting the seven members of the OMP by the Constitutional Council which includes seven parliamentarians and three other eminent members from public is as duty which must be properly carried out giving priority to well-known independent and qualified, excluding persons with political leanings. Impartiality, absence of bias and pre conceived interests, must be the guidelines in selecting the seven members who also should be above suspicion.
It is also a welcome feature to include all missing persons notwithstanding the length of time such person became a missing person. This period could cover 1980s to current period including JVP risings besides the periods of armed struggle between LTTE and other movements with the state’s security forces during the past thirty years or more.
Under Section 12 [Mandatory]
OMP should initiate inquiry or investigation into the whereabouts and/or circumstances of disappearance of a missing person following a complaint received by previously established Commissions which have inquired into allegations relating to disappearances or missing persons. This requirement must be complied with by the OMP as a mandatory one and if it fails or omits to perform this duty in relation to a missing person, it could be sued through the writ process in the Supreme Court as stated under Section 25 .
Section 12  [Discretion]
Section 12  states as follows:-“Where it appears to the OMP that an offence under penal code or any other law has been committed, the OMP may report same to the relevant law enforcement or prosecuting authority.” This section is only directory, the exercise of this power of OMP is subject to its discretion. – [The words] – it “may refer” indicate its absolute discretion to do or omit to do and this cannot be questioned by any court or any affected person even if it fails to exercise this power.
3. Section 13  [Discretion
Section 13  states as follows:-:Where the OMP has sufficient material to conclude that the complaint relates to a missing person, an interim report will be issued to issue a certificate of absence by the Registrar General.”
This is another section which grants the OMP the discretion and judgement as to the question of sufficiency of material for a conclusion and this is a subjective power and decision which will not be easier to challenge through a writ in the court by a missing person. If the material falls within “confidential information” a missing person will have no avenue open to demand a certificate of absence as stated under section 15 .
Section 15  Mandatory]
Section 15  states as follows:-“OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence. Right of Information Act 2016 shall not apply with regard to such information. “
This section completely prohibits from giving to relatives etc. all information requesting confidentiality relating to the circumstances in which a person went missing.
Thus Section 15  grants complete non-disclosure of all information communicated in confidence even prohibiting the applicability of rights under the Right of Information Act 2016. This section is a sweeping denial of a person’s right to access the information, verify its truth and nature and by whom and against whom it was given. This denial of a fundamental right weakens the provisions of section 13  which requires OMP to inform victims, relatives, witness and other informants their right to directly refer matters to relevant authorities , to report serious crimes nor ordinary crimes. As such this right to initiate any action through Police or State Prosecutors is a much curtailed one barely serving the needs for justice to the affected parties including informants, and complainants.
Under Section 15:- only matters communicated to them in confidence cannot be disclosed under the Right of Information Act 2016 – Under 15  OMP shall not be required to produce whether in any Court or otherwise all materials communicated to them in confidence.
Under Section 15:- only confidential information will be kept secret and OMP is also given immunity from any legal challenge to disclose all matters communicated to them in confidence in person or in absence.
All in all, the above sections do not in any way help the complainants to seek judicial remedies, which is a denial of a citizen’s fundamental right of freedom to seek redress through courts. It is natural that all the information to be disclosed will be in confidence. OMP will also have a Victim and Witness Protection Division to protect the rights, concerns ect. of victims witnesses and relatives of missing persons.
This is a welcome feature allowing all witnesses to give evidence without fear of reprisals or blackmailing. The success of this section depends on the steps of OMP taken without favour or bias. Under Section 23, OMP is not bound to submit annual reports containing confidential information received under Section 15 
Under this Section, confidentiality even extends to its annual reports as well which also fortifies the duty of non-disclosure of information given in confidence reducing the opportunities of an affected party to seek legal remedies.
Section 25  “ No order, decision, act or omission of OMP or member, officer, servant shall be questioned in any court of law except in proceedings under Article 126 or 140 of the constitution. The writ jurisdiction under act 140 shall be only exercised by the Supreme Court.” This section provides a relief only by way of writs like mandamus prohibition, certiorari quo warranto or injunction field in a Supreme Court which is cumbersome for an ordinary litigant.
Article 25  :- grants protection from civil, criminal or administrative action. All acts of an OMP member or OMP done in good faith or omitted to be done, report made in good faith or any person providing evidence or documentation to the OMP are protected except under Article 126 – 140 by way of writ in the Supreme Court.
Section 25 :- This section also allows only writ remedies through Supreme Court, which is a tedious and expensive matter viewing the challenges facing a litigant to prove bad faith which is a subjective test and difficult to prove in any Court.
Section 27 – [Discretions]“Missing Person means a person whose fate or whereabouts are reasonably believed to be unknown and which person is reasonably believed to be unaccounted for and missing.”
This section also implies subjective tests to decide if a person is missing or not, depending on the OMP’s discretion to conclude the question of ‘reasonable belief’ which will prove to be a contentious issue in a Court. All in all, OMP is a welcome move but with discretionary deceptive provisions shutting out the core concept of judicial accountability through non-liability for the perpetrators and granting impunity with criminal non liability which is stated in Section 13  as follows:-
“The findings of the OMP shall not give rise to any civil or criminal liability.”
Armed with various discretionary powers, the OMP’s success depends on how far these discretions are exercised honestly and in good faith to uphold justice which an aggrieved litigant can attempt to achieve through the writ remedies to challenge an act, omission, order, or decision of OMP or acts of members, excluding the findings of the OMP and closing the avenues of civil or criminal liability proceedings against identified perpetrators.
This act was intended to placate the United Nations and International Community hoping to ride over the gathering stormy waves expected from the forthcoming UNHRC sessions particularly the one in March 2017 when Sri Lanka is in the agenda for a final evaluation and assessment report about its progress as regards the October 2015 UNHRC Resolution the recommendations of which except OMP remain untouched and intact. Most of these resolutions are worded with [ENCOURAGING] Sri Lanka to implement without any coercive effect as the writer mentioned in an earlier article [A Deflated US Resolution & Tamils’ Quest for Justice and Accountability. by Thambu Kanagasabai, October 1, 2015]
Whether the findings of the OMP based on undisclosable confidential information will be of any value to the affected is a six million question?